Supreme Court Blocks Louisiana Abortion Law

WASHINGTON — The Supreme Court on Thursday blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority. That coalition underscored the pivotal position the chief justice has assumed after the departure last year of Justice Anthony M. Kennedy, who used to hold the crucial vote in many closely divided cases, including ones concerning abortion.

The court’s brief order gave no reasons, and its action — a temporary stay — did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October.

Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.

For Chief Justice Roberts, it was something of a turnaround, at least for now. He dissented in the court’s last major abortion case in 2016, voting to uphold a Texas law essentially identical to the one at issue in Thursday’s case.

Abortion rights advocates welcomed the court’s order, which came around 9:30 p.m., only hours before the law was to go into effect.

“The Supreme Court has stepped in under the wire to protect the rights of Louisiana women,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement. “The three clinics left in Louisiana can stay open while we ask the Supreme Court to hear our case. This should be an easy case — all that’s needed is a straightforward application of the court’s own precedent.”

Chief Justice Roberts’s overall voting record has been conservative, and this was not the first time in recent months he has disappointed some of his usual allies. In December, he joined the court’s four-member liberal wing — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — to reject a request from the Trump administration in a case that could upend decades of asylum policy.

That same month, he drew sharp criticism from three conservative colleagues for voting to deny review in two cases on efforts to stop payments to Planned Parenthood. But Chief Justice Roberts joined the court’s four conservative members on Thursday night in a 5-to-4 ruling allowing the execution of a Muslim inmate in Alabama whose request for his imam to be present was denied by prison officials.

Chief Justice Roberts has voted to sustain other laws restricting abortion. And his vote to grant a stay on Thursday, in other words, does not mean he will vote to strike down the Louisiana law when the case returns to the court.

The court is likely to confront other abortion cases, too, as several state legislatures have recently enacted laws that seem calculated to try to force the Supreme Court to consider overruling Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

The Louisiana law, enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. In 2017, Judge John W. deGravelles of the Federal District Court in Baton Rouge struck down the law, saying that such doctors were often unable to obtain admitting privileges for reasons unrelated to their competence and that the law created an undue burden on women’s constitutional right to abortion.

The law, Judge deGravelles ruled, was essentially identical to one from Texas that the Supreme Court struck down in a 2016 decision, Whole Woman’s Health v. Hellerstedt. Justice Breyer, writing for the majority in that decision, said courts must consider whether the claimed benefits of laws putting restrictions on abortion outweigh the burdens they placed on the constitutional right to the procedure.

There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40.

The vote in the 2016 decision was 5 to 3, with Justice Kennedy in the majority. The case was decided by an eight-member court after the death of Justice Antonin Scalia that February.

Justice Kavanaugh replaced Justice Kennedy last fall, shifting the Supreme Court to the right. Around the same time, a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, reversed Judge deGravelles’s decision and upheld the Louisiana law, saying its benefits outweighed the burdens it imposed.

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“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority. In particular, he wrote, “the admitting-privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”

He added that the Louisiana law “does not impose a substantial burden on a large fraction of women.” Judge Smith faulted doctors seeking to provide abortions in the state for not trying hard enough to obtain admitting privileges and said abortions would remain available after the law went into effect.

In dissent, Judge Patrick E. Higginbotham wrote that the majority’s ruling was impossible to reconcile with the Supreme Court’s 2016 decision in the Texas case and with its landmark 1992 ruling in Planned Parenthood v. Casey, which banned states from placing an “undue burden” on the constitutional right to abortion.

“I fail to see,” Judge Higginbotham wrote, “how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but ‘undue.’”

“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Higginson wrote. “The majority would not, and I respectfully suggest that the dissenters might not either.”

The clinic and doctors challenging the law filed an emergency application in the Supreme Court asking it to block the law while they pursued an appeal.

“Louisiana is poised to deny women their constitutional right to access safe and legal abortion with an admitting-privileges requirement that every judge in the proceedings below — the District Court, the panel majority and the dissenters — agrees is medically unnecessary,” the challengers wrote in their application in the case, June Medical Services v. Gee, No. 18A774.

“One doctor at one clinic cannot possibly meet the needs of approximately 10,000 women who seek abortion services in Louisiana each year,” they wrote. “Some of these women will attempt self-managed abortions, seek out unlicensed or unsafe abortions or be compelled to carry an unwanted pregnancy to term.”

Lawyers for the state responded that the law would be administered in a cautious way, with no immediate changes. The challengers were wrong, the state said, to assert that “Louisiana abortion providers will immediately be forced to cease operations, with dire consequences.” The law will take effect, the state’s lawyers said, as part of “a sensitive regulatory process that should begin in an orderly way.”

The challengers disputed that, saying that doctors without admitting privileges would risk immediate civil, criminal and professional liability if they performed abortions after the law became effective.

“Given the number and severity of the law’s penalties, no clinic or doctor without admitting privileges will continue to provide abortions” once the law becomes enforceable, they wrote. “Irreparable harm to women in Louisiana, therefore, is imminent.”

In his dissent on Thursday, Justice Kavanaugh said he would have provisionally denied the stay to let the factual questions be sorted out. Notably, he said that the Texas decision was “the governing precedent for purposes of this stay application.”

The Fifth Circuit, he wrote, had predicted that the four doctors who provide abortions at three clinics could obtain admitting privileges. There was no dispute as to one of the doctors, he wrote, leaving questions about three of them.

If those doctors can obtain privileges, Justice Kavanaugh wrote, “the new law would not impose an undue burden” under the Texas decision.

“By contrast, if the three doctors cannot obtain admitting privileges,” Justice Kavanaugh wrote, “then one or two of the three clinics would not be able to continue providing abortions. If so, then even the state acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.”

The right solution, he wrote, would have been to deny the stay and let the challengers return to court if the doctors could not obtain privileges.